How to gain possession of your property
2nd December 2022
Articles
Most tenancies are a success, with tenants paying their full rent on time and landlords doing their part by providing good-quality homes. And the vast majority of tenancies end when the tenant chooses to move out – generally speaking, landlords don’t evict tenants unless they have a good reason.But if your tenant has stopped paying their rent or is causing problems through anti-social behaviour and the issue can’t be resolved, you may need to evict them so that you can re-let to a better tenant. Or you might simply want the tenant to leave so you can carry out renovations, move into the property yourself or even sell it.
Whatever the reason for wanting your property back, there are specific legal processes you need to follow.
And although there are government proposals to scrap section 21 – so-called ‘no fault’ evictions – and amend section 8 notices, nothing has been finalised. If the plans do end up becoming law, there’s likely to be a decent ‘lead time’, and the current rules will probably still be in force for some time yet.
So, here’s a round up of the steps you need to take if you want to evict your tenant and regain possession of your property.
Note: The following applies to England only.
Section 8 notice: if your tenant has breached their tenancy agreement
If your tenant has breached any of the terms in their rental contract, you have the right to evict them. You can serve a section 8 notice at any time, regardless of whether it’s within a fixed term, but you must state the ground(s) on which you’re evicting the tenant.
There are 17 separate grounds, divided into two main categories:
- Mandatory grounds, where the court must grant possession to the landlord. This category includes serious rent arrears of more than two months (if rent is paid monthly).
- Discretionary grounds, where the court will only grant possession if it decides that it’s reasonable to do so. Most breaches fall into this category.
The amount of notice you have to give depends on the ground(s), but in most cases where the tenant has broken the terms of their agreement, it’s two weeks – for example, if they’ve been involved in domestic violence, damaged property belonging to the landlord or provided false information to secure the let. In cases where they’ve caused serious nuisance or used the property for illegal activities, you may be able to move straight to an eviction without any notice period.
To issue a section 8 notice, use Form 3 from the government website.
Section 21 notice: if your tenant hasn’t done anything wrong
A section 21 notice can be used to evict a tenant when they haven’t breached their tenancy agreement, as long as you give them a minimum of two months’ notice.
You can’t evict a tenant on this basis in the first 6 months or within an initial fixed term, but you can take your property back any time after either of those have expired. For example:
- If there’s no fixed term and you want them to leave at the end of 6 months, serve the section 21 at the end of month 4.
- If the tenancy was for an initial fixed term of 12 months and you want the tenant to leave at the end of that year, you can serve the section 21 at the end of month 10, or earlier.
Section notices should ideally be handed in person to the tenant, who should sign to confirm they’ve got it. The next best option is to deliver the notice to the property yourself and have someone witness it, and you could also attach it to an email with a ‘read receipt’. The important thing is that you can prove it was successfully delivered to the tenant in case you have to go to court and the tenant claims they either didn’t get the notice or didn’t get it on the right date.
Always serve a section 21 when you want your property back
Even if you’ve simply got a 12-month initial agreement that’s coming to an end and your tenant told you they plan to leave, if you definitely want the property back then you need to serve a section 21 at least two months before the year end.
That way, if the tenant changes their mind or simply stops paying rent and refuses to leave, you can legally move straight to a court-ordered eviction. If you wait and don’t serve the section 21 until the agreed tenancy end has come and gone, you’ll have an extra two-month wait while the notice period is in effect. Remember, if a tenancy hasn’t been legally brought to an end, it simply continues as a ‘periodic’ tenancy, rolling from month to month.
To issue a section 21 notice, use form 6A from the government website.
Is there anything that could prevent me serving notice on my tenant?
As long as you’ve complied with all your legal obligations and responsibilities throughout the tenancy, you should be able to get your property back if you want or need to. In the vast majority of cases, if a landlord isn’t able to evict a tenant, it’s because they’ve done something wrong. Probably the two most common reasons are:
1. The tenant hasn’t been provided with the correct ‘prescribed information’
At the start of each tenancy, there are certain documents you’ve got to give your tenants:
- A valid energy performance certificate (EPC)
- A valid Gas Safety certificate – which has to be renewed annually
- A copy of the latest version of the government’s ‘How to rent’ guide
- The relevant tenancy deposit protection information.
2. The tenant has complained about the condition of the property and the local authority has served notice for repairs to be carried out
If your tenant makes a written complaint about the property, you have to respond within 14 days and arrange for necessary repairs to be carried out. If you don’t, your tenant can report you to the local authority. If they then inspect the property and serve an improvement notice or a notice of emergency remedial action, you can’t evict that tenant using a section 21 for a further 6 months.
There are other reasons why you might not legally be able to serve an eviction notice, including if your tenant is in financial difficulty and has been given temporary protection from their creditors by the Debt Respite Scheme. So, if you do need to get your property back, feel free to get in touch with us to discuss the situation and we can help you find the best way forward.
Of course, even if an eviction is legally valid, your tenant might refuse to leave. Thankfully, that’s still a fairly rare situation, but it’s important to know what you can and can’t do if your tenant does dig their heels in.
Evicting your tenant through the courts
If your tenant hasn’t left the property by the date stated on the section 8 or 21 and they make it clear they don’t intend to leave, the next step is to involve the court.
If you’ve used a section 21 and you’re not claiming rent arrears, you can apply for an ‘accelerated possession order’. This usually doesn’t involve a court hearing, so it can be quicker than applying for a standard possession order. And if you do want to claim rent arrears, you can make a separate claim once you’ve got your property back.
In all other cases, you’ll have to apply for a standard possession order. In that case, the judge could either make a possession order based on the information they have or decide that a hearing is needed, which could take time, depending on how busy the courts are.
While this is going on, it’s important to remember that no matter how frustrating the eviction process and what your tenant is or isn’t doing, you’re not allowed harass them or break any of your other obligations.
Things you mustn’t do include:
- Refuse to carry out repairs
- Enter the property without your tenant’s permission
- Remove any of the tenant’s possessions
- Make threats
- Withold keys or change the locks
- Cut off any utilities.
If any part of the eviction been handled incorrectly – e.g. the wrong notice was given – or the judge decides there isn’t a valid reason for the eviction, the case will be dismissed. That means your tenants can stay in the property, and if you still want to evict them, you’ll have to start the process again from scratch.
In the very rare case where a tenant still doesn’t leave even after a court has issued a possession order, you can ask the court for a ‘warrant for possession’. That gives the tenant a final date to vacate the property, after which a bailiff will be sent to forcibly evict them.
Regardless of why you’re evicting your tenant, it’s well worth taking professional advice before you start the process, just to make sure it’s 100% legal and you can get your property back as soon as possible. If you have an agent managing your let, they should be able to handle things on your behalf, and if you’re self-managing, you can consult a specialist eviction company, such as Landlord Action or The Landlord Group.
Meanwhile, if you have any questions about a particular tenant you may need to evict or the eviction process in general, we’re always here to help. Give us a call on 01795 437777 or email email@hawkesfordjames.com and we’ll get right back to you.
